States' Rights and the Union: Imperium in Imperio, 1776-1876
By Forrest McDonald
University Press of Kansas, $29.95, 296 pages.

Forrest McDonald is a reputable scholar. Early-American historians especially are indebted to him, not only f or his important study of the formation of the republic, and his celebrated biography of Alexander Hamilton, but because, in "We The People," he convincingly discredited Charles Beard's quasi-Marxist interpretation of the Constitution and, by so doing, removed the shadow Mr. Beard had cast over the reputations of its Framers. Thanks largely to Mr. McDonald, we now know what we always believed, that the Constitution is not the product of selfish men wanting to feather their own nests.

But the present volume is something else again; indeed, one might well ask why he bothered to write it. Mr. McDonald says it is the first "book-length study" of the states' rights controversy. True enough; yet he knows very well--in effect he says--that anyone familiar with the history of the United States during its first 100 years will find nothing new in this book. But how many are they?

For the others (and we may have reached the point where this means almost everybody), the book provides an instructive account of this controversy, of the disagreements concerning the nature of the Union and the line to be drawn between the authority of the general government and that of the several states. Mr. McDonald says the country was preoccupied with this issue, or with the "tensions" arising out of it, beginning in the days of Hamilton and Thomas Jefferson and continuing through the better part of the 19th century. Indeed, as he would have it, "the tensions continued to be felt as the twentieth century came to an end."

But "tensions" is hardly the word to describe our situation today, in part because we no longer argue about the nature of the Union; for most of us, at least, that issue was settled in the Civil War. We continue to have our disagreements, of course, and some of them have to do with states' rights.

For example, we disagree over whether Congress may forbid the carrying of handguns in state and local schoolyards, or require state courts to hear federal claims against state governments; but these disagreements are readily resolved, and everyone agrees that they ought to be resolved, by the Supreme Court. This is a far cry from the days when the champions of states' rights talked of interposition, nullification, and, finally, secession.

Each of these principles--Mr. McDonald calls them concepts or doctrines--derives from the basic states' rights proposition that the Constitution is a compact entered into by the states and, therefore, that the states are entitled to define its terms. Thus, when Congress (in 1798) enacted the notorious Alien and Sedition Acts, Virginia and Kentucky, in Resolutions written respectively by James Madison and Jefferson, declared them to be breaches of the constitutional compact.

The powers of Congress are strictly limited, Madison said, and in the case "of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them." Unable to gain support for the Resolutions from the other states, Madison and Jefferson set about the task of organizing a political party, and Jefferson, having been elected president in 1800, proceeded to pardon all those who had been convicted under the Sedition Act which, under its own terms, expired in 1801.

After interposition came nullification, a principle associated with the great name of John C. Calhoun. Here the offending act of Congress was the tariff of 1828, known in South Carolina as the Tariff of Abominations. South Carolina responded by adopting an "Exposition," secretly drafted by Calhoun, calling for a state convention authorized to decide whether the law was constitutional.

In the meantime, Congress revised the tariff, but only slightly, and in 1832 the convention called by South Carolina adopted the Ordinance of Nullification declaring the tariffs of 1828 and 1832 unconstitutional, and forbidding the collection in the state of the duties levied by them. What followed was a major constitutional crisis involving (among others) Calhoun, Daniel Webster, and President Andrew Jackson, who threatened to send in the army. It was resolved only when Congress adopted a compromise tariff proposed by Henry Clay.

Mr. McDonald devotes an entire chapter to the secession crisis, and many prior pages to the issue that provoked it, slavery. What is of interest here is that he thinks the champions of states' rights--principally Jefferson, Calhoun, and ultimately Jefferson Davis--had the better of the argument about the nature of the Union. (Calhoun, he says, "decisively demonstrated the soundness" of their view in the Senate debates over nullification.) They claimed that there was no United States prior to the ratification of the Constitution in 1787-88, that it came into being with the Constitution, which was the work of "sovereign" states.

The Confederates took this to mean that the states, having formed the Union, were entitled not only to "nullify" what they saw as infractions of it but to secede from it.

Abraham Lincoln, of course, disagreed; he insisted that the Union was formed when we, as "one people," declared our independence in 1776, but Mr. McDonald says this view is "untenable." As it happens, Lincoln was right, and can be proven right by the Constitution itself. There, specifically, in Article VII, we read that it was written (and sent to the Continental Congress which, in turn, was to send it out for ratification) on "the Seventeenth Day of September in the Year of Our Lord one thousand seven hundred and Eighty seven and emphasis added of the United States of America the Twelfth emphasis added ." As Lincoln said, and said again in the first line of his Gettysburg Address, the United States was born in 1776.

This is not an unimportant matter. For, if Lincoln was wrong, the Confederates were right, and if they were right about the Union, they were right about secession and the war that followed it. The war, then, was Lincoln's doing and, as the unreconstructed Confederates insist even today, he was wrong to fight it. Does Mr. McDonald agree with this?

He does not say but, for some reason--some reason having nothing to do with the states' rights controversy--he criticizes Lincoln sever ely for the way he fought the war. Lincoln, he says, violated the Constitution time and time again; unlike the "moderate" Jefferson Davis, he "rode roughshod" over those who opposed him, repressing the disloyal "with a vengeance"; he used "coercion" to keep the border states in line and the army to control elections. McDonald goes so far as to say Lincoln's Emancipation Proclamation "actually freed no slaves," but that "it served its purpose, for Britain and France ultimately abandoned the idea of intervening in the war."

This would have been a better book had Mr. McDonald confined himself to the facts. His judgments are not only unnecessary but mistaken and offensive.